Part two of Jim’s interview with CNN Legal Analyst Jeffrey Toobin (@JeffreyToobin), on the state of the Supreme Court.
You can view Part I here.
Jim Braude: So I watch you all the time when CNN, I said I have so many questions about the Supreme Court to ask that guy. Now you’re here. So can I ask a couple of them?
Jeffrey Toobin: Go ahead.
JB: Is Merrick Garland, the abomination, a one and done abomination? Or is this going to be something the after effects of which we’re going to live with for potentially for years if not that. I don’t mean in terms of the decisions of the court. I mean the whole process that denied him even a hearing.
JT: I think the taboo against keeping Supreme Court seats open is gone. And the fact that the Republicans in the Senate very openly and unapologetically said we’re going to keep this seat open for a minimum of eight or 10 months is really a signal that these fights are going to be so ugly and so bad going forward that we could be looking at not multiple month but multiple year vacancies on the court. If you have Senate control and opposite political party of the president’s party
JB: You wrote, I think it was in the New Yorker once, that people who criticized Clarence Thomas for his silence and for suggesting he is for lack of a better expression, Scalia’s poodle or something, are unfair. I’m in that unfair category. Why are my criticisms unfair?
JT: Because Justice Thomas has brought a distinctive philosophy to the to the court that is different from Justice Scalia’s and it’s been developed through many different opinions. Justice Thomas, Clarence Thomas is the most conservative justice to serve on this court since the 1930s, more conservative than Justice Scalia. And if you look at a lot of the big conservative decisions of the past several decades whether it’s citizens united about campaign finance or the Heller case about guns, it was Clarence Thomas not Justice Scalia, who first brought those ideas into the bloodstream of the Supreme Court thought. Now that doesn’t mean you have to like those views. I don’t share most of those views but they are distinctive views and it is not, you know, ignorance. It is just very conservative thought.
JB: Didn’t you write, I hope I get this right. I think you wrote one of the stories that you were at some synagogue or something and Scalia was speaking. What was his line, I’m an originalist, I’m not a nut. Was that to be humorous?
JT: Well part of it was sort of meant to be humorous but I think it made a larger point, is that someone asked at the synagogue how does your judicial philosophy, Justice Scalia, differ from Justice Thomas’s. And he said I’m an originalist but I’m not a nut. And by that he’s meant that Justice Thomas would be, and he’s made this clear happy to overrule decades of Supreme Court precedent because of his originalist views where even Justice Scalia would have to say look you know we can’t rewrite the whole constitution.
JB: Speaking of president, you mentioned Citizens United, five four right? Five four? And some people say, it’s not quite Dred Scott. But some people think one of the worst decisions of modern time. Let’s assume Hillary Clinton is elected. And there’s a five four majority on a decent number of cases. How likely is it that a slim majority would overturn a slim majority on a case like this which to Hillary Clinton supporters is practically the anti-Christ.
JT: Well not immediately but you would be. I mean remember it’s not just citizens united. There have been a series of campaign finance decisions basically deregulating American politics, saying that any sorts of limits on campaign fundraising and campaign spending, on disclosure, are unconstitutional. What I think you would see and what I think you will see if there are five Democratic appointees on the court is a process of allowing those regulations that exist to stay on the books and that will gradually cut back on citizens united and ultimately perhaps overturning it. But certainly not right away.
JB: OK let’s end with my obsession. The fact that there’s a camera in virtually every state courtroom in America and that there are not cameras in the federal courts puts me over the edge. But it doesn’t put me nearly as much over the edge as having people like Sonia Sotomayor and Elena Kagan testifying in their nomination hearing saying, yeah I think I support cameras in the courtroom and they were for it before they’re against it. Is there one decent argument for there not to be cameras in federal court?
JT: We started this interview talking about Stockholm Syndrome. I think Justice Sotomayor and Justice Kagan have Stockholm Syndrome being around their colleagues who hate cameras. I don’t think there is a single good reason. The only thing I can say in defense of this justice’s position is that they are very reluctant to tamper with the traditions of the court. They see themselves honorably as stewards of the court. But look any argument against cameras in the courtroom that is based on witnesses or juries has no application at the Supreme Court because there are no witnesses or juries. They don’t want the public attention. They don’t want the public scrutiny they don’t want the ridicule that would come with close scrutiny of their behavior at oral argument. But those arguments are not good arguments it’s the public’s business and we should see them.
JB: Am I going to live to see them?
JT: No.
JB: Thank you.
JT: If it makes you feel any better, neither of us will.
